Law, Environment, and Vision

Abstract

Environmental law stands uncomfortably poised between visions. Once driven by essentially moral, cultural, and aesthetic purposes, environmental regulatory agenda now seems, like other aspects of emerging cost-benefit state, to be emphatically instrumentalist. Although legal framework established during primarily ethical environmentalism of 1970s remains largely intact, consensus view of commentators today is that this framework represents a failing paradigm. The future of environmental regulation instead lies in such efficiency-oriented instruments as tradable permits, corrective taxes, disclosure schemes, and other tools designed to replicate conditions of a well-functioning market. Indeed, tradable permit has been called the most fashionable innovation in environmental policy today, promising not only to achieve regulatory goals with less cost than traditional command and control techniques, but also to inspire reasoned deliberation by public and its representatives regarding such weighty issues as very type of environment in which we desire to live. This Article argues that republican moment promised by tradable permit schemes will remain stubbornly elusive so long as environmental law and policy is dominated by either ethical environmentalism of 1970s or stark instrumentalism of conventional economic theory. Because many mainstream approaches to economics fail to recognize absolute limits imposed by nature on ability of humans to appropriate and utilize natural resources, they also fail to provide a sound conceptual basis on which to make political judgments required by tradable permit schemes. Just as cost-benefit analysis seems incoherent under absolutism of 1970s-era environmental statutes, setting aggregate limits to annual pollutant emissions appears nonsensical -- or at least not urgent -- within a theoretical model that recognizes no binding constraints to economic growth. Fortunately, an alternative vision exists. More or less simultaneous with shift to efficiency-oriented environmental regulation has been development of ecological economics, an emerging field that seeks to bring multidisciplinary rigor to study of nature's role within human economic production. By fusing insights from ecology, population biology, and physics with theoretical framework of economics, ecological economists attempt to provide a more nuanced understanding of human-ecosystem interactions than those offered independently by either economists or conservationists. Significantly, ecological economists rely upon a preanalytic vision of human activity that is bounded by natural constraints. This vision or worldview provides a simple yet surprisingly radical departure from mainstream economic thought. As this Article attempts to demonstrate, it also provides basis for an alternative conception of goals of collective governance, one that brings much-needed coherence to environmental decision-making within reign of market-based regulation.